Terror Suspect Retrial Starts in Hamburg

Their client is not initially expected to testify and will instead be represented in the case by his lead attorney, Udo Jakob, who is again expected to reiterate Motassadeq's innocence. Motassadeq, the defense will say, neither belonged to the Hamburger terror cell, nor did he have any knowledge of their plans for the Sept. 11 terrorist attacks.

In a recent notice to the court, Motassadeq's second attorney, Josef Grässle-Münscher (photo), called on the judges to drop the case. "The door is closed, the legal system closed it and won't reopen it again." The lawyer said the door had also been closed because of scrutiny of U.S. authorities, whom he accused of preventing a fair trial.

"What we know is that the witnesses from America were tortured, I mean, systematically tortured," he said.

First appeal a success

Last February, a Hamburg court sentenced the 29-year-old Moroccan student to the maximum 15 years in prison on charges including accessory to murder in 3,045 cases, membership in a terrorist organization, attempted murder and five cases of causing grievous bodily injury.

But in March, the Federal Court of Justice in Karlsruhe ordered a retrial on Motadasseq's appeal. The court stated that the first trial, in which he received the maximum penalty of 15 years in prison, was unfair because the United States refused to allow witness testimony from Khalid Shaikh Mohammed and Ramzi Binalshibh -- both of whom are in American custody at clandestine locations. US officials believe Binalshibh served as the mastermind behind the Sept. 11 attacks in New York and Washington that killed over 3,000 people.

Despite pressure from German Federal Prosecutor Kay Nehm, Washington has not said whether it will allow testimony from the two detainees, citing security issues. Even if Washington does make Binalshibh or his testimony available, the court in Hamburg could have trouble accepting it. German media coverage in recent months has concentrated on alleged abuses in Iraqi prisons by US soldiers as well as criticism over the US' handling of suspected terrorists at Guantanamo Bay, which could make this case a very hard sell with the public.

Testimony unreliable?

In Grässle-Münscher's opinion, any evidence provided by the US would at this point be deemed unreliable.

"By now this man is just a shell, if he's even still alive," he said.

German law prohibits information obtained from a prisoner under duress or tortured to be used in court. If the judges determine torture was used to extract information from Binalshibh, it could be grounds for a dismissal.

"The accusations of torture have to be put before the court," Grässle-Münscher said. He added that he had 1,000 pages of documentation backing up his claims that Binalshibh and Mohammed did not give their statements freely.

Despite the defense's clear and unambiguous position, it's far from certain that the judges in the case will accept these arguments and close the case. Few observers believe the court will immediately drop the case, and members of the prosecution said they are viewing the motion for dismissal casually.

Prosecutors try new strategy

"We're standing behind all of the prosecution points," said Frauke-Katron Scheuten of the Federal Prosecutor's Office. But this time around the prosecution is also taking a different approach from the last trial. Instead of focusing first on an earlier charge that Motassadeq was an accomplice in the murder of the Sept. 11 terrorist victims, they will now first try to establish that he was part of a terrorist organization -- a charge that is easier to prosecute in Germany under laws passed after the terrorist attacks. Sources in Karlsruhe said they wouldn't need any witnesses from the US to make the case of allegations that Motassadeq was a member of a terrorist organization in Summer 1999.

The change in the prosecutor's focus also demonstrates the difficulty German investigators have had in cementing their case against Motassadeq. Officials at the Federal Prosecutor's Office have conceded that they are reliant on evidence supplied by the US, but in this case, US officials have not pledged to provide the material to Motassadeq's prosecutors to give them what they may need to prove their case.

The Motassadeq case has particularly frustrated German prosecutors because he was the first person to be convicted with alleged ties to the Hamburg terror cell that carried out the Sept. 11 attacks. His retrial and the acquittal in February of a similar case involving Moroccan student Abdelghani Mzoudi (photo), has meant that the country has failed to successfully prosecute anyone believed to be connected to the crime.